Steven R. Ratner Professor of International Law, University of Texas at Austin Law School. |
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At this time, the obvious candidates outside the former Yugoslavia and Rwanda — where the list is long — fall into two categories: first, those exile from their home, especially Stroessner, Duvalier, Mengistu, Hissein Habre, Amin, and Cedras; and second, those still enjoying impunity at home, e.g., senior Khmer Rouge leaders, Rios-Montt in Guatemala, and Pinochet. All could be charged with crimes against humanity, as well as torture as an independent crime, over which there is universal jurisdiction. I assume their chief aides could also be charged. The only options for international prosecutions are in third states, creation of a new UN (or regional) tribunal, or the internationalization of a domestic trial. There are blockages to trial in third states, since all dictators in exile were given assurances that they would not be tried or returned home. As for a new international tribunal, don't bet on it. As for internationalization of a domestic trial through foreign judges or prosecutors, the UN is attempting to do that with Cambodia; we'll see what happens. If it works, I could imagine other countries asking the UN for help. In response to your question, Senator Jesse Helms is right when he says that anyone with political enemies could be arrested. But there are strong political barriers to a third state investigating these abuses and making arrest requests; the danger, however, is underenforcement, not overenforcement. I thus think that Helms vastly overstates the danger, though one can always make the claim that some loose-cannon prosecutor could investigate and arrange for anyone's arrest, and it's not a trivial point. I also think there are big moral questions about the ability of an outside state (as opposed to a UN tribunal) to upset the decision of a home state to shield people from prosecution via amnesty. It's not a black-and-white issue of accountability vs. impunity. I still think that, even though there are cases where states should probably not exercise it, universal jurisdiction is both a reality and a good thing.
Steven R. Ratner is a Professor of International Law, University of Texas at Austin Law School.
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